Columbia Valley Healthcare System, L.P. D/B/A Valley Regional Medical Center and Luis Gaitan v. Madhavan Pisharodi

NUMBER 13-18-00660-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
COLUMBIA VALLEY HEALTHCARE
SYSTEM, L.P. D/B/A VALLEY REGIONAL
MEDICAL CENTER AND LUIS GAITAN, Appellants,
v.
MADHAVAN PISHARODI, Appellee.
On appeal from the 444th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Chief Justice Contreras
This accelerated appeal concerns a motion to dismiss brought under the Texas
Citizens Participation Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. ch. 27.
Appellants, Columbia Valley Healthcare System, L.P. d/b/a Valley Regional Medical
Center (VRMC) and Luis Gaitan, contend by one issue that the trial court should have
granted their motion to dismiss a suit brought by appellee Madhavan Pisharodi. We affirm
in part and reverse and remand in part.
I. BACKGROUND
On February 1, 2016, Pisharodi sued appellants in the 444th District Court for
breach of contract, defamation, business disparagement, conspiracy, and negligence.
Appellants filed their first TCPA motion to dismiss on July 11, 2016, and a hearing on the
motion was held on September 21, 2016. On October 14, 2016, Pisharodi filed an
amended petition adding additional detail to his factual allegations; appellants then filed
a second TCPA motion to dismiss. Six days later, the trial court granted the first motion
to dismiss with respect to Pisharodi’s business disparagement, defamation, and
conspiracy claims. However, it made no ruling with respect to Pisharodi’s breach of
contract and negligence claims.
On appeal, we held that the trial court should have also dismissed the breach of
contract and negligence claims because Pisharodi failed to produce clear and specific
evidence to establish a prima facie case on each essential element of those claims.
Columbia Valley Healthcare Sys., L.P. v. Pisharodi, No. 13-16-00613-CV, 2017 WL
4416334, at *3 (Tex. App.—Corpus Christi–Edinburg Oct. 5, 2017, no pet.) (mem. op.)
(CVHS I). Following the issuance of our mandate, Pisharodi filed a second amended
petition on June 27, 2018, raising defamation, malicious prosecution, and conspiracy
claims. Hours later on the same day, the trial court rendered judgment in accordance with
our opinion—it granted appellants’ second motion to dismiss in its entirety; dismissed “all
claims against [appellants]” with prejudice; and provided that appellants “be awarded
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attorney’s fees, court costs, expenses, and sanctions” from Pisharodi.1
Addressing the claims made in Pisharodi’s second amended petition, appellants
filed a third TCPA motion to dismiss on July 30, 2018. After a hearing on October 10,
2018, the third motion to dismiss was denied by operation of law. See TEX. CIV. PRAC. &
REM. CODE ANN. § 27.008(a) (providing that a TCPA motion to dismiss is denied by
operation of law if it is not granted within thirty days after the hearing on the motion). This
interlocutory appeal followed. See id. § 51.014(a)(12) (permitting interlocutory appeal of
order that denies a TCPA motion to dismiss).
II. DISCUSSION
Appellants argue that the trial court erred by denying their third TCPA motion to
dismiss, which concerned the claims made in Pisharodi’s second amended petition. At
the October 10, 2018 hearing, Pisharodi advised the trial court that he would not be
proceeding on his defamation claim.2 Accordingly, the only live claims are for malicious
prosecution and conspiracy.
By four sub-issues, appellants contend: (1) the TCPA applies to the claims; (2)
Pisharodi failed to meet his burden to produce clear and specific evidence supporting the
claims; (3) the claims are barred by res judicata and collateral estoppel; and (4) appellants
are immune from the claims under the Texas Medical Practice Act (TMPA). See TEX.
OCC. CODE ANN. § 160.010.
1 The June 27, 2018 order did not specify the amount of fees or costs to be awarded to appellants.
2 The record contains no notice of non-suit or any amended petition withdrawing Pisharodi’s
defamation claim, and the trial court did not render judgment dismissing that claim. Nevertheless,
Pisharodi’s counsel was unequivocal at the hearing about his intention to dismiss the defamation claim with
prejudice, and Pisharodi makes no argument with respect to the defamation claim on appeal. Therefore,
we consider the claim abandoned and we do not address it here. See TEX. R. APP. P. 47.1.
3
A. Applicable Law and Standard of Review
The TCPA was enacted “to encourage and safeguard the constitutional rights of
persons to petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the same time, protect the
rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. &
REM. CODE ANN. § 27.002. It protects citizens from retaliatory lawsuits that seek to
intimidate or silence them on matters of public concern—commonly known as “Strategic
Lawsuits Against Public Participation” or SLAPPs—by providing a mechanism for
summary disposition of such suits. In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig.
proceeding).
Under the version of the TCPA applicable here, a defendant seeking dismissal has
the initial burden to show that the plaintiff’s claim “is based on, relates to, or is in response
to a party’s exercise of the right of free speech, right to petition, or right of
association . . . .” Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen.
Laws 961, 962 (amended 2019) (current version at TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.003(a)). The “exercise of the right of free speech” means “a communication made in
connection with a matter of public concern”; a “matter of public concern” includes an issue
related to health or safety, or to a service in the marketplace. TEX. CIV. PRAC. & REM. CODE
ANN. § 27.001(3); Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen.
Laws 961, 962 (amended 2019) (former TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.001(7)(A), (E)). If the defendant meets this initial burden, the burden then shifts to
the plaintiff to establish by “clear and specific evidence a prima facie case for each
essential element of the claim in question.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).
4
Even if the plaintiff makes this showing, the trial court must still dismiss if the defendant
“establishes by a preponderance of the evidence each essential element of a valid
defense to the nonmovant’s claim.” Act of May 24, 2013, 83rd Leg., R.S., ch. 1042, § 2,
2013 Tex. Gen. Laws 2499 (amended 2019) (current version at TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005(d)).
Our review of a ruling on a TCPA motion to dismiss is de novo. Entravision
Commc’ns Corp. v. Salinas, 487 S.W.3d 276, 281 (Tex. App.—Corpus Christi–Edinburg
2016, pet. denied); Hicks v. Grp. & Pension Adm’rs, Inc., 473 S.W.3d 518, 526 (Tex.
App.—Corpus Christi–Edinburg 2015, no pet.).
B. Applicability of TCPA
In considering the threshold issue of whether the TCPA applies, we observe that
the claims made in Pisharodi’s second amended petition are based on the same operative
facts as the claims made in his original and first amended petitions. Pisharodi alleged the
following facts in his original petition:
This lawsuit arises out of the actions taken by [VRMC] in response to
[Pisharodi]’s legitimate concerns regarding a fellow physician’s treatment of
and communications with two patients. In the context of these two patients,
[Pisharodi] was advised by [VRMC]’s Chief of Staff to reduce his concerns
into writing. Once it received the writing, however, [VRMC] failed to
meaningfully investigate his allegations and instead, started a campaign
against [Pisharodi] in conjunction with [Gaitan] to not only discredit him in
Cameron County, but also to the Texas Medical Board [TMB] and the
[National Practitioner Data Bank (NPDB).3] [Gaitan] made false and
misleading statements intending to cause harm to [Pisharodi]. These
statements were made to peers, hospital staff as well as patient family
members.
3 The National Practitioner Data Bank (NPDB) is a federally-mandated “web-based repository of
reports containing information on medical malpractice payments and certain adverse actions related to
health care practitioners, providers, and suppliers.” The NPDB – About Us, https://www.npdb.hrsa.gov/
topNavigation/aboutUs.jsp (last visited Jan. 27, 2020).
5
[VRMC] initiated a series of peer reviews in violation of the bylaws against
[Pisharodi]. [VRMC] cut [Pisharodi]’s access to the patient medical records
for which it was conduc[t]ing the peer reviews for. Realizing that it was not
going to be successful in discrediting [Pisharodi] with an accurate set of
medical records, [VRMC and Gaitan] then altered patient medical records,
well after the fact, to justify its imposition of a thirty day suspension of
privileges. [VRMC] not only used the altered medical records in its sham
peer review proceedings but also made two reports to the [TMB] and
transmitted altered medical records to them with the intent that they take
enforcement action against [Pisharodi]. [VRMC] also discredited [Pisharodi]
by making a report to the [NPDB].
Based on these facts, Pisharodi raised defamation, conspiracy, breach of contract, and
negligence claims, among others. In his second amended petition, Pisharodi set forth the
following factual allegations to support his malicious prosecution and conspiracy claims:
This lawsuit arises out of the actions taken in retaliation against PISHARODI
by VRMC and GAITAN in response to PISHARODI’s legitimate concerns
regarding a [sic] GAITAN’s treatment of multiple patients. When
PISHARODI first raised his concerns verbally, VRMC’s Chief of Staff told
PISHARODI to state his concerns in a formal written complaint. VRMC
received PISHARODI’s concerns in writing, but failed to investigate the
matter. Instead, VRMC and GAITAN began a retaliatory campaign against
PISHARODI. VRMC AND GAITAN’S actions following PISHARODI’s
written complaint were retaliatory, and were designed and calculated to
injure PISHARODI and his medical practice while protecting GAITAN from
malpractice issues.
In the time period following PISHARODI’s written complaint, VRMC
reported PISHARODI to the [TMB] on two (2) separate occasions; VRMC
conducted three (3) separate sham peer reviews, and at one point,
suspended PISHARODl’s hospital privileges for thirty-one (31) days. The
31-day suspension of his hospital privileges was maliciously imposed by
VRMC in order to surpass the threshold required to enable VRMC to file an
adverse report with the [NPDB]. . . .
VRMC falsely alleged that PISHARODI had altered patient medical records,
when in fact, VRMC altered the medical records in order to protect
GAITAN. . . . The allegation of altered medical records was the basis of
VRMC’s reporting to the [NPDB] and was, likewise, the basis of VRMC's
31-day suspension imposed against PISHARODI. VRMC had also made
the same allegation against PISHARODI to the [TMB], but that complaint
was ultimately dismissed.
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In CVHS I, we concluded that Pisharodi’s breach of contract and negligence claims
were based on, relate to, or are in response to appellants’ exercise of the right of free
speech. 2017 WL 4416334, at *2. We agreed with appellants that “any statements made
to the TMB or the [NPDB] and any statements made during the peer review process
constitute protected free speech” because “the provision of medical services by a health
care professional constitutes a matter of public concern.” Id. (citing Lippincott v.
Whisenhunt, 462 S.W.3d 507, 510 (Tex. 2015)). Pisharodi has not offered any reason
why a different result should hold with respect to his malicious prosecution and conspiracy
claims, which arise out of largely the same facts.4 We conclude that those claims are also
based on, relate to, or are in response to appellants’ exercise of the right of free speech.
Therefore, the TCPA applies. See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2,
2011 Tex. Gen. Laws 961, 962 (amended 2019); CVHS I, 2017 WL 4416334, at *2.
C. Prima Facie Case
Next, we must determine whether Pisharodi met his burden to establish by “clear
and specific evidence a prima facie case for each essential element” of his malicious
prosecution and conspiracy claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).
“Clear and specific evidence” must be more than “general allegations that merely recite
the elements of a cause of action”; instead, “a plaintiff must provide enough detail to show
the factual basis for its claim.” In re Lipsky, 460 S.W.3d at 590–91.
4 In fact, as noted, the trial court previously ruled on October 20, 2016 (and again on June 27, 2018,
after we handed down CVHS I), that defamation and conspiracy claims based on these facts should be
dismissed under the TCPA. Pisharodi re-pleaded the defamation and conspiracy claims in his second
amended petition. Appellants do not contend that the trial court was bound, under res judicata or other
principles, to dismiss the re-pleaded claims. Appellants also do not assert that Pisharodi waived the right
to re-plead these claims by failing to appeal the trial court’s October 20, 2016 dismissal order.
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1. Affidavit
To support his claims, Pisharodi relies on his 24-page affidavit detailing two
incidents in 2011 regarding appellant Gaitan and the actions VRMC allegedly took in
response thereto.5
On May 19, 2011, patient T.F. suffered a pulmonary embolism after receiving a
pain medication injection at Pisharodi’s office. T.F. was admitted to VRMC where Gaitan
began treating her. According to Pisharodi, Gaitan informed T.F.’s family members that
the patient’s condition “was so bad that she was a candidate for termination of life
support.” Pisharodi disagreed with that prognosis; but Gaitan advised the family members
to “dismiss [Pisharodi] from the care” so that the termination of life support could proceed,
and the family members did so. As set forth in the affidavit, Pisharodi then asked VRMC’s
CEO to “arrange an ethics committee meeting” regarding Gaitan’s conduct, but the CEO
declined, stating that there was no need for such a meeting. According to Pisharodi,
despite being taken off life support, and despite the administration of hourly Morphine
injections “to knock out her breathing center,” T.F.’s condition actually improved. The
patient later died two or three weeks later, but Pisharodi claimed that this was because
of infections she acquired at VRMC, not because of “the complications related to her brain
activity.”
Pisharodi next explained that another patient, Y.P., was admitted to VRMC on
August 6, 2011, with encephalitis and myoclonic seizures. According to the affidavit,
5 The affidavit was filed with Pisharodi’s response to appellants’ third TCPA motion to dismiss on
October 10, 2018, the same day as the hearing on the motion. Appellants objected to the affidavit orally at
the hearing, and later in writing, arguing that the affidavit was conclusory and speculative and was not
based on Pisharodi’s personal knowledge. The trial court did not rule on the objections and appellants do
not take issue with that failure on appeal.
8
Gaitan diagnosed Y.P. with “psychiatric illness” and suggested that she divorce her
husband to reduce stress. Y.P.’s husband sought a second opinion from Pisharodi, who
determined that the patient had a brain infection and should be transferred to intensive
care. Pisharodi claimed that, without his intervention in the case, Y.P. would have suffered
death or serious brain damage as a result of the infection. According to Pisharodi, Gaitan
later told hospital staff that Y.P.’s infection was “very dangerous and contagious” and he
falsely told Y.P.’s family members that Pisharodi was not qualified to do a brain biopsy.
Pisharodi asserts that he is, in fact, qualified to do a brain biopsy; but none was necessary
in Y.P.’s case because she had already started improving due to treatment rendered by
Pisharodi.
Based on these two incidents, Pisharodi made a verbal ethics complaint against
Gaitan to VRMC’s Chief of Staff. According to Pisharodi, VRMC “[i]mmediately” retaliated
by “sen[ding] the medical records of another patient of mine, [W.B.], for external peer
review against me”; this was done without Pisharodi’s knowledge, which was contrary to
standard procedure. The hospital’s Chief of Staff advised Pisharodi to file written
complaints regarding Gaitan’s conduct, and Pisharodi did so in late August of 2011. After
filing the written complaints, Pisharodi was directed to attend a meeting of the hospital’s
Medical Executive Committee. He believed he was being summoned to provide more
details about Gaitan’s conduct; but instead, the committee “ignore[d]” his complaints
about Gaitan and “start[ed] interrogating [Pisharodi]” about his own conduct instead. He
claims members of the committee “attacked” him and asked questions about issues he
“was totally unprepared to discuss,” in alleged contravention of the VRMC bylaws.
Pisharodi stated in his affidavit: “The first thing VRMC did was to alter the date of
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admission of [Y.P.] from 8/6/2011 to 8/8/2011.” He stated that the “only possible
explanation” for altering the admission date would be to “exclude” Gaitan’s August 7, 2011
consultation, in which he diagnosed Y.P. with a mere “psychiatric illness,” from the
admissions records. He claims that computer records were altered but handwritten notes
show that the actual admission date was August 6. Pisharodi further claims that VRMC
“mislabeled” him as a “neurologist” rather than a “neurosurgeon” in order to “mislead” the
external peer review physician.6 According to Pisharodi, the external peer review
physician “came back with a glorious appreciation of the patient care based on what I did
to the patient.” He claims that VRMC “falsely interpreted” the findings of the external peer
review physician to mean that Gaitan did nothing wrong; and this gave the “false
impression” that Pisharodi’s complaint against Gaitan was baseless.
As to the incident regarding T.F., Pisharodi’s affidavit tells a similar story. Pisharodi
claims that there were two external peer reviews conducted regarding the care of this
patient; but only Pisharodi’s care was examined, not Gaitan’s. Although the second peer
review was “supposed to” concern Gaitan’s care, the first line of the report stated that
Pisharodi’s care is “specifically under review”; Pisharodi argued that this is “circumstantial
evidence that somebody from VRMC was verbally communicating with the external peer
reviewer on what his or her report should say.” According to Pisharodi, VRMC’s Chief of
Staff informed the Medical Executive Committee on October 18, 2011, that there were
peer reviews pending against Pisharodi and Gaitan, and that the external peer review
6 Pisharodi noted that encephalitis is “not diagnosed by a neurosurgeon like me and should have
been diagnosed by a neurologist like [Gaitan].” He claims VRMC “mislabeled” him as a neurologist so as
to avoid mentioning Gaitan’s involvement in Y.P.’s case.
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process did not find anything wrong with Gaitan’s care. Pisharodi claims that this result
came about only because Gaitan’s care “was never investigated.”
The affidavit states that Pisharodi later received a “sanction letter” from the Chief
of Staff instructing him to complete a continuing medical education (CME) course within
ninety days. Pisharodi’s lawyer wrote to VRMC asserting that the CME requirement was
not an approved sanction under the bylaws and that the “episode would be considered
abandoned” if VRMC did not justify its actions. VRMC did not reply, so Pisharodi and his
attorney wrote further letters saying they considered the episode abandoned.
According to Pisharodi, in retaliation for his refusal to complete the CME course
and “[t]hreatened by [his] ownership in Brownsville Doctors Hospital,” VRMC initiated
another peer review against him in June 2012. He claims that VRMC “combine[d] portions
of the two external peer reviews on [T.F.] and present[ed] it to me as one peer review.”
He claims VRMC violated its bylaws by initiating the peer review without providing details
to him regarding the alleged misconduct. He further alleged that VRMC appointed an ad
hoc committee to investigate him and that he was only allowed to see a portion of the
relevant medical records to prepare his defense before that committee. At a meeting of
the ad hoc committee on June 11, 2012, Pisharodi was presented with a page from T.F.’s
medical records containing a date stamp of June 1, 2011. According to Pisharodi, the
procedure described in that document actually took place at his office on May 16, 2011.
Pisharodi asserts that the ad hoc committee members “attacked” him for this and accused
him of “backdat[ing]” and “falsif[ying]” the document. He alleges that VRMC “intentionally
or erroneously stamped this 5/16/2011 note on 6/1/2011” and this discrepancy was “used”
in 2014 to suspend him from admitting privileges at the hospital and, in turn, to report him
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to the TMB and NPDB.7
Pisharodi stated in his affidavit that VRMC filed a second complaint with the TMB
in December of 2014, principally complaining of “an alleged backdating of a medical
record by [Pisharodi] with regards to [T.F.].” He stated that the TMB dismissed the two
complaints concerning him on June 30, 2015, and June 17, 2016, respectively.
Finally, Pisharodi acknowledged in his affidavit that he filed suit in federal court
based on these facts in January of 2014. Most of the claims were dismissed in August of
2014 for failure to state a cause of action.8 Pisharodi asserted in his affidavit, however,
that the federal court’s order of dismissal “only related to matters that took place before
January of 2014,” and that his malicious prosecution claim “did not accrue until after [the
complaints against him were] dismissed by the [TMB] on June 17, 2016.”9
7 Pisharodi states he later “realized” that VRMC “routinely used their ‘inefficient stamping’ methods
to protect its ‘friends’ and attack its enemies.”
8 A copy of the federal court’s August 8, 2014 order was attached to appellants’ third TCPA motion
to dismiss. It shows that the federal court granted VRMC’s motion to dismiss Pisharodi’s claims for
declaratory judgment, Sherman Act violations, fraud, breach of fiduciary duty, business disparagement,
tortious interference with an existing contract, civil conspiracy, defamation, negligent misrepresentation,
intentional infliction of emotional distress, and negligent hiring. The federal court denied VRMC’s motion to
dismiss Pisharodi’s breach of contract claim.
9 Pisharodi also provided live testimony at the October 10, 2018 hearing. Appellants objected to
the live testimony but the trial court implicitly denied the objection by allowing the testimony to proceed. As
part of their second sub-issue, appellants contend that we may not consider the live testimony in our
analysis because “[t]he TCPA does not contemplate consideration of live testimony.”
The applicable version of the TCPA provides that “[i]n determining whether a legal action should
be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing
affidavits stating the facts on which the liability or defense is based.” Act of May 21, 2011, 82nd Leg., R.S.,
ch. 341, § 2, 2011 Tex. Gen. Laws 961, 963 (amended 2019) (current version at TEX. CIV. PRAC. & REM.
CODE ANN. § 27.006(a)). There is a split of authority in the appellate courts regarding whether live testimony
is permitted by this language. Compare Batra v. Covenant Health Sys., 562 S.W.3d 696, 707 (Tex. App.—
Amarillo 2018, pet. denied) (“In addition to consideration of the pleadings and affidavits, a trial court may,
but is not required to, hear live testimony and receive the submission of documentary evidence.”) and
Nguyen v. Dangelas ex rel. K.D., No. 01-19-00046-CV, 2019 WL 5996381, at *3 (Tex. App.—Houston [1st
Dist.] Nov. 14, 2019, no pet. h.) (mem. op.) (same) with Quintanilla v. West, 534 S.W.3d 34, 42 (Tex. App.—
San Antonio 2017) (stating that “[t]he trial court does not hear live testimony” in considering a TCPA motion
to dismiss), rev’d on other grounds, 573 S.W.3d 237 (Tex. 2019) and Pena v. Perel, 417 S.W.3d 552, 556
(Tex. App.—El Paso 2013, no pet) (same).
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2. Malicious Prosecution
To prove malicious prosecution of a civil claim, a plaintiff must establish: (1) the
institution or continuation of civil proceedings against the plaintiff, (2) by or at the
insistence of the defendant, (3) malice in the commencement of the proceeding, (4) lack
of probable cause for the proceeding, (5) termination of the proceeding in plaintiff’s favor,
and (6) special damages. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex.
1996); S. Tex. Freightliner, Inc. v. Muniz, 288 S.W.3d 123, 132 (Tex. App.—Corpus
Christi–Edinburg 2009, pet. denied).
Appellants argue that Pisharodi failed to meet his burden as to the first element of
his malicious prosecution claim—initiation of a civil proceeding against the plaintiff—
because “the peer review is arguably not a civil proceeding as contemplated by the
statute.” But courts in other states have found that a malicious prosecution action may be
based on the defendant’s initiation of administrative proceedings against the plaintiff. See
Hardy v. Vial, 48 Cal. 2d 577, 581 (1957) (“[A]n action for malicious prosecution may be
founded upon the institution of a proceeding before an administrative agency.”); Rainier’s
Dairies v. Raritan Valley Farms, 117 A.2d 889, 895–96 (N.J. 1955) (“[U]nder certain
circumstances a malicious prosecution [claim] may be predicated upon the institution of
other than a judicial action, at least where such proceedings are adjudicatory in nature
and may adversely affect legally protected interests.”); see also Hillside Assocs. v.
Stravato, 642 A.2d 664, 668 (R.I. 1994) (same); Carver v. Lykes, 262 N.C. 345, 352
We assume for purposes of this opinion, but do not decide, that the live testimony was
impermissible under the TCPA, and we do not consider it in our analysis of the motion to dismiss.
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(1964) (same).10 Appellants cite no authority to the contrary. We conclude that Pisharodi
has produced clear and specific evidence that appellants instituted civil proceedings
against him.
Appellants further contend that, even if the peer reviews could be considered civil
proceedings, they were not terminated in Pisharodi’s favor. See Tex. Beef Cattle Co., 921
S.W.2d at 207 (elements of malicious prosecution). Appellants argue that the peer
reviews resulted only in a “recommendation” to the TMB and that “any action with regard
to [Pisharodi]’s record with the [TMB] would be determined by the [TMB] itself—not the
hospital’s peer review committee.” But appellants cite no authority establishing that, to
sustain a malicious prosecution claim, the “termination” in the plaintiff’s favor must have
been directly effectuated by the defendant. Instead, under the applicable law, it suffices
to show that the proceeding, though initiated or continued by the defendant, was
terminated in the plaintiff’s favor—no matter which entity actually carried out the
termination. See id. Here, it is undisputed that the peer reviews initiated by appellants
resulted in proceedings before the TMB—and the TMB, in turn, disposed of those
proceedings in Pisharodi’s favor. We conclude that Pisharodi has produced clear and
10Long ago, the federal court of appeals for the District of Columbia Circuit explained why malicious
prosecution suits may be based on administrative proceedings:
Much of the jurisdiction formerly residing in the courts has been transferred to
administrative tribunals, and much new jurisdiction involving private rights and penal
consequences has been vested in them. . . . The same harmful consequences may flow
from the groundless and malicious institution of proceedings in them as does from judicial
proceedings similarly begun. When one’s livelihood depends upon a public license, it
makes little difference to him whether it is taken away by a court or by an administrative
body or official. Nor should his right to redress the injury depend upon the technical form
of the proceeding by which it is inflicted. The administrative process is also a legal process,
and its abuse in the same way with the same injury should receive the same penalty.
Melvin v. Pence, 130 F.2d 423, 426 (D.C. Cir. 1942).
14
specific evidence of this element.
Next, appellants argue there is no evidence that the peer reviews were initiated
without probable cause or with malice. See id. In the context of malicious criminal
prosecution claims, “probable cause” means “such facts and circumstances as would
excite belief in a reasonable mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime for which he was prosecuted.”
Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983). Malice has been defined as “ill will or evil
motive, or such gross indifference or reckless disregard for the rights of others as to
amount to a knowing, unreasonable, wanton, and willful act.” Luce v. Interstate Adjusters,
Inc., 26 S.W.3d 561, 566 (Tex. App.—Dallas 2000, no pet.). “To establish malice, it is not
necessary to prove that the defendant acted with personal spite or ill will; it is sufficient to
show the defendant committed wrongful acts in reckless disregard of another’s rights and
with indifference as to whether the party would be injured.” Id. Malice may be inferred
from a lack of probable cause, but a lack of probable cause may not be inferred from
malice. Id.
In malicious prosecution claims, there is a presumption that the defendant acted
in good faith in reporting an apparent subversion of the law. S. Tex. Freightliner, Inc., 288
S.W.3d at 133–34 (citing Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 794 (Tex.
2006)). The plaintiff bears the burden to rebut this presumption “by producing evidence
that the defendant initiated a prosecution on the basis of information or motives that do
not support a reasonable belief that the claimant was guilty of the charged crime.” Id.
“Evidence of motives that undermine the presumption of reasonable belief include prior
bad relations, preexisting debt, racial animus, or any private motivation to harm.” Id.
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Appellants claim that Pisharodi has produced no evidence from which it could be
inferred that appellants acted with malice in initiating the peer reviews. In particular,
appellants claim there is no evidence that VRMC “withheld any material information, or
knowingly provided false information, to any regulatory authority or administrative body.”
However, Pisharodi stated in his affidavit that VRMC altered Y.P.’s medical records in
order to “exclude” evidence that Gaitan misdiagnosed Y.P. from the peer review
proceedings. He also claimed that VRMC mischaracterized his medical specialty, again
in order to conceal Gaitan’s involvement in Y.P.’s treatment. Pisharodi further suggested
that VRMC harbored animus against him because he was a part owner of a competing
hospital and because he refused to take a CME course as directed. His theory is that, by
quashing his legitimate complaints about Gaitan’s conduct and initiating an investigation
into his own conduct, VRMC sought to punish him while protecting Gaitan and its own
reputation. This theory is supported by the facts as set forth in Pisharodi’s affidavit.
Moreover, although it is Pisharodi’s burden to show lack of probable cause, it is
noteworthy that appellants have directed us to nothing in the record establishing that
Pisharodi’s professional conduct was actually deficient in any way with respect to the two
patients at issue. In other words, based on the record before us, the facts and
circumstances known to VRMC at the time the peer reviews were initiated could not have
“excite[d] belief in a reasonable mind” that Pisharodi’s professional conduct warranted
peer review, a suspension of his admitting privileges, or reports to the TMB and NPDB.
See Akin, 661 S.W.2d at 921.
For the foregoing reasons, we conclude that there is clear and specific evidence
that the peer reviews and reports were initiated without probable cause. And because
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malice may be inferred from lack of probable cause, see Luce, 26 S.W.3d at 566, we
further conclude that the evidence of malice is sufficient to avoid dismissal under the
TCPA.
Finally, appellants dispute that Pisharodi suffered special damages. See Tex. Beef
Cattle Co., 921 S.W.2d at 207 (elements of malicious prosecution). To show special
damages, the plaintiff must have suffered more than just the “mere filing of a lawsuit” or
“ordinary losses incident to defending a civil suit, such as inconvenience, embarrassment,
discovery costs, and attorney’s fees.” Id. at 208–09. Instead, “[t]here must be some
physical interference with a party’s person or property in the form of an arrest, attachment,
injunction, or sequestration.” Id. at 209 (citing Sharif-Munir-Davidson Dev. Corp. v. Bell,
788 S.W.2d 427, 430 (Tex. App.—Dallas 1990, writ denied)). Pisharodi contends that he
suffered special damages because his admitting privileges at VRMC were suspended for
thirty-one days as a result of the peer reviews that appellants initiated. We agree.
Pisharodi alleged in his affidavit that the suspension was set at thirty-one days specifically
because that length of suspension required reports to be made to TMB and NPDB; he
claims that, had the suspension been for thirty days or fewer, VRMC would not have been
empowered to make such reports. In any event, the suspension of Pisharodi’s admitting
privileges does not constitute “ordinary losses” incident to defending an administrative
proceeding such as the peer reviews undertaken in this case. Instead, it constitutes
interference with a property right, akin to an injunction, and therefore satisfies the special
damages requirement. See id.
We conclude that Pisharodi produced clear and specific evidence establishing a
prima facie case for all elements of his malicious prosecution claim. Therefore, appellants’
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motion to dismiss this claim under the TCPA was properly denied.
4. Conspiracy
Civil conspiracy requires (1) two or more persons who agree upon an object, (2) a
meeting of minds on the object to be accomplished, and (3) one or more overt, unlawful
acts committed in furtherance of the conspiracy, (4) which results in damages. Hicks, 473
S.W.3d at 532.
With respect to his conspiracy claim, Pisharodi’s live petition alleged as follows:
The conduct of VRMC and GAITAN alleged within this Second Amended
Petition could not have occurred at the hands of one individual or entity. For
example, the removal and alteration of medical records—which required
different security clearances—indicates multiple actors involved in the
wrongful actions taken against PISHARODI. Because PISHARODI has
been prevented from obtaining the identities of these additional actors due
to the automatic stay arising from Defendant’s [TCPA] motion to dismiss,
the additional co-conspirators acting against PISHARODI will be named
after a reasonable opportunity has been given for Plaintiff to conduct
discovery.
Appellants contend that there is no clear and specific evidence of a prima facie
conspiracy case because Pisharodi’s affidavit did not identify any individuals that
allegedly conspired with VRMC to initiate the complained-of peer reviews.11 We agree.
Although Pisharodi argues that “a conspiracy’s participants may not know each other’s
identity, and its membership may change,” he does not point to any “clear and specific
evidence” in his affidavit or elsewhere in the record establishing that Gaitan, or any other
individual or entity, actually agreed to accomplish any object with VRMC; nor does he
complain of the trial court’s apparent decision not to permit discovery as provided in the
11 Appellants also argue that the conspiracy claim fails because there is no underlying tort.
However, we have held that the evidence of malicious prosecution was enough to survive the TCPA motion
to dismiss. Therefore, we reject this argument.
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TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(b). Because Pisharodi failed to
produce clear and specific evidence establishing a prima facie case as to conspiracy, we
conclude the trial court erred in denying appellants’ motion to dismiss this claim under the
TCPA.
D. Defenses
We must next consider whether appellants established by a preponderance of the
evidence each essential element of a valid defense to the malicious prosecution claim.
See Act of May 24, 2013, 83rd Leg., R.S., ch. 1042, § 2, 2013 Tex. Gen. Laws 2499
(amended 2019) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d)).
By part of their third sub-issue, appellants contend that the malicious prosecution
claim is barred by collateral estoppel.12 A party asserting collateral estoppel must
establish that: (1) the facts sought to be litigated in the second action were fully and fairly
litigated in the first action; (2) those facts were essential to the judgment in the first action;
and (3) the parties were cast as adversaries in the first action. Sysco Food Servs., Inc. v.
Trapnell, 890 S.W.2d 796, 801 (Tex. 1994). The doctrine “applies when the party against
whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in
the prior suit.” Eagle Props., Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990).
Appellants argue that the ruling in Pisharodi’s 2014 federal suit precludes his
malicious prosecution claim. As noted, the federal district court dismissed all but one of
the claims raised by Pisharodi based on largely the same facts as the instant suit. But
12 By this sub-issue, appellants also assert the defense of res judicata as to Pisharodi’s defamation
and conspiracy claims. We need not address that defense because the defamation claim was abandoned
and the conspiracy claim was not supported by clear and specific evidence of a prima facie case. See TEX.
R. APP. P. 47.1.
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malicious prosecution was not among those claims. Moreover, the federal court’s order
states that the dismissals were based on Federal Rules of Civil Procedure 12(b)(6) and
9(b), not the TCPA. Thus, the legal issues before that court were arguably not the same
as that considered here. Compare FED. R. CIV. P. 12(b)(6) (providing that a party may
move to dismiss an action for “failure to state a claim upon which relief can be granted”)
and FED. R. CIV. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity
the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other
conditions of a person’s mind may be alleged generally.”) with TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005(c) (requiring plaintiff to show “by clear and specific evidence a prima
facie case for each essential element of the claim in question”).
More importantly, the facts involved here are not precisely the same as those
considered in the federal suit. The federal suit was filed in January of 2014; the majority
of the claims were dismissed on August 8 of that year; and final judgment was rendered
in January of 2015. But Pisharodi’s malicious prosecution claim depends on the
termination in his favor of the two TMC complaints, and those terminations occurred in
June of 2015 and June of 2016. Therefore, as Pisharodi asserts, collateral estoppel does
not apply to his malicious prosecution claim because that claim accrued after the federal
court made its ruling.13 We overrule appellants’ third sub-issue.
By their fourth sub-issue, appellants claim that they are immune from the malicious
13 Pisharodi also argues that collateral estoppel may not be raised as a “valid defense” to support
a TCPA motion to dismiss because “non speech defenses (such as limitations or accord and satisfaction)”
do not advance the statutory purpose. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.002; Act of May 24,
2013, 83rd Leg., R.S., ch. 1042, § 2, sec. 27.005(d), 2013 Tex. Gen. Laws 2499 (amended 2019). We
assume for purposes of this opinion that any cognizable legal defense, including collateral estoppel, may
be raised as a “valid defense” under the TCPA.
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prosecution claim under § 160.010(b) and (c) of the TMPA, which provide as follows:
(b) A cause of action does not accrue against a member, agent, or
employee of a medical peer review committee or against a health
care entity from any act, statement, determination or
recommendation made, or act reported, without malice, in the course
of medical peer review.
(c) A person, medical peer review committee, or health care entity that,
without malice, participates in medical peer review or furnishes
records, information, or assistance to a medical peer review
committee or the board is immune from any civil liability arising from
that act.
TEX. OCC. CODE ANN. § 160.010 (emphasis added). We have already concluded,
however, that Pisharodi has produced clear and specific evidence of malice. Appellants
have not established by a preponderance of the evidence each essential element of any
defense based on the TMPA. See id. We overrule appellants’ fourth sub-issue.
III. CONCLUSION
We affirm that portion of the judgment denying appellants’ third TCPA motion to
dismiss as it relates to Pisharodi’s malicious prosecution claim. However, the motion
should have been granted with respect to Pisharodi’s civil conspiracy claim; therefore, we
reverse that portion of the judgment concerning the conspiracy claim. The cause is
remanded for further proceedings consistent with this opinion.
DORI CONTRERAS
Chief Justice
Delivered and filed the 30th
day of January, 2020.
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